Citation Nr: 0927027
Decision Date: 07/21/09 Archive Date: 07/30/09
DOCKET NO. 05-01 593 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
January 1968 to August 1970.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decision in July 2004 of a Department of
Veterans Affairs (VA) Regional Office (RO).
Other Preliminary Matters
In addition to the diagnosis of posttraumatic disorder, the
Veteran has been diagnosed with major depressive disorder.
In a rating decision in July 2004, the RO denied service
connection for depression. Thereafter in rating decisions in
September 2006 and in April 2007, the RO denied the Veteran's
applications to reopen the claim of service connection for
depression. After the Veteran was notified of the adverse
determinations and of his appellate rights, he did not
initiate an appeal of any of the rating decisions by the RO
and by operation of law the rating decisions became final.
As there are final rating decisions on the diagnosis of
depression based on competent medical evidence, the diagnosis
of depression is a separate claim from the claim of service
connection for posttraumatic disorder, and the claim of
service connection for depression is not in appellate status.
Clemons v. Shinseki, 23 Vet. App. 1 (2009).
FINDING OF FACT
The Veteran did not serve in combat and there is no credible
supporting evidence of any in-service stressor to support the
diagnosis of posttraumatic stress disorder.
CONCLUSION OF LAW
Posttraumatic stress disorder was not incurred in or
aggravated by service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. §§ 3.303, 3.304 (2008).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented in part at 38 C.F.R. § 3.159, amended VA's duties
to notify and to assist a claimant in developing information
and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of the following: (1)
any information and medical or lay evidence that is necessary
to substantiate the claim, (2) what portion of the
information and evidence VA will obtain, and (3) what portion
of the information and evidence the claimant is to provide.
The notification requirements are referred to as Type One,
Type 2, and Type Three, respectively. See Shinseki v.
Sanders, 129 S. Ct. 1696 (2009).
Also, the VCAA notice requirements apply to all five elements
of a service connection claim. The five elements are: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided pre- and post- adjudication VCAA notice by
letters, dated in March 2004 and in March 2006. The Veteran
was notified of the evidence needed to substantiate the claim
of service connection, namely, evidence of current
disability; evidence of an injury or disease in service or an
event in service, causing injury or disease; and evidence of
a relationship between the current disability and the injury,
disease, or event in service. The Veteran was provided a
PTSD questionnaire to identify any in-service stressor.
The Veteran was notified that VA would obtain service
records, VA records, and records of other Federal agencies,
and that he could submit other records not in the custody of
a Federal agency, such as private medical records, or with
his authorization VA would obtain any non-Federal records on
his behalf. The notice included the provisions for the
effective date of a claim and for the degree of disability
assignable.
The documents complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence); of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); and of Dingess v. Nicholson,
19 Vet. App. 473 (notice of the elements of the claim).
To the extent that the VCAA notice came after the initial
adjudication, the timing of the notice did not comply with
the requirement that the notice must precede the
adjudication. The procedural defect was cured as after the
RO provided content-complying VCAA notice the claim was
readjudicated as evidenced by the supplemental statement of
the case, dated in October 2008. Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate
VCAA notice and subsequent readjudication and harmless
analysis is not needed.).
Duty to Assist
As required by 38 U.S.C.A. § 5103A, VA has made reasonable
efforts to identify and obtain relevant records in support of
the claim. The RO obtained service records and VA records.
The Veteran has been afforded VA examinations, which included
medical opinions and a diagnosis of posttraumatic stress
disorder.
After the RO verified that the Veteran was receiving Social
Security Administration benefits, the RO requested
verification of the Veteran's alleged in-service stressors
from the U.S. Army and Joint Services Records Research Center
(JSRRC) and notified the Veteran in the supplemental
statement of the case in October 2008 that the JSRRC was
unable to search or to verify the alleged in-service
stressors. As the development of the credible supporting
evidence of any in-service stressor, which is the unproven
element of the claim, was done after the Veteran started to
receive Social Security Administration benefits, the Board
determines that the records of the Social Security
Administration are not relevant to this material issue of
fact upon which the claim is decided. As the records are not
relevant, it is not necessary to obtain the records under the
duty to assist. 38 C.F.R. § 3.159(c).
As the Veteran has not identified any additional evidence
pertinent to the claim and as there are no additional records
to obtain, the Board concludes that no further assistance to
the Veteran in developing the facts pertinent to the claim is
required to comply with the duty to assist.
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The service personnel and treatment records show that the
Veteran served on active duty from January 1968 to August
1970. His military occupational specialty was heavy vehicle
(truck) driver. He served in Vietnam from June 1968 to June
1969 with the 670th Transportation Company. In June 1969,
the Veteran received a letter of appreciation for his
outstanding performance as a driver and for maintaining his
vehicle. He then extended his tour in Vietnam for six months
and was given 30 days leave.
While on leave in June 1969 in California the Veteran was in
a vehicle accident, and he suffered a brain concussion and a
skull fracture and he was hospitalized in a private hospital
and then transferred to a military hospital, where he was
returned to duty with a temporary physical profile in
September 1969.
In July 1969, a private physician described the Veteran's
initial, private hospitalization following the accident as
stormy as for three weeks the Veteran was in intensive care,
where he regained consciousness and he had periods of extreme
agitation, anxiety, confusion, and hyperactivity, all of
which improved.
It is not clear when the Veteran returned to Vietnam and his
unit, but the record suggests that he was there in January
1970 and he remained in Vietnam until August 1970. He
participated in Vietnam Counter Offensive Phases IV, V, VI,
and TET 1969, all of which occurred between June 1968 and
June 1969, and unnamed campaign that started in January 1970.
A Letter of Commendation from the Commanding Officer of the
36th Transportation Battalion (Truck) to the Commanding
Officers of the Battalion's three companies, including the
442nd and 670th Transportation Companies, commended the
officers and men of the battalion for outstanding performance
during November 1969 for transporting essential cargo in
support of combat operations although frequently harassed by
enemy fire.
The service treatment records contain no complaint, finding,
history, treatment, or diagnosis of a psychiatric illness.
And on separation examination, the psychiatric evaluation was
normal.
After service on VA psychiatric examination in November 2003,
it was reported that the Veteran had served two tours in
Vietnam, where he had been a truck driver in convoys, and he
was subjected to mortar attacks and enemy fire and combat.
The Veteran specifically described as extremely upsetting:
(1) seeing bodies of dead Viet Cong along the roadside and if
the families did not claim the bodies, the bodies were
burned; and (2) sixteen days before he was to return home a
rocket went through the windshield of a truck in line ahead
of him which killed the driver. The diagnosis was chronic,
combat-related posttraumatic stress disorder.
In December 2003 a VA physician assistant stated that the
Veteran was seen for symptoms of posttraumatic stress
disorder.
In his substantive appeal in November 2004, the Veteran
repeated the stressors he described on VA psychiatric
examination in November 2003. In addition, he stated that on
a convoy near Song Mao he was held up for a week because the
Viet Cong kept blowing up a bridge and the bridge had to be
rebuilt each time it was hit.
In a statement in June 2005, the Veteran repeated the
stressors he previously described and added the approximate
dates of the events: bodies of dead Viet Cong (duration of
time in Vietnam); the truck hit by a rocket at Ninh Hoa (May
or June 1970); and the bridge at Song Mao (December 1968).
In addition, he stated that he was caught in the middle of a
fire fight between the Viet Cong and the Koreans at Ban Me
Thout (June 1968).
In a statement in April 2006, the Veteran's sister stated
that after the Veteran was sent back to Vietnam drugs and
alcohol became a part of his life, from which he had never
recovered.
In a statement in April 2006, the Veteran's brother-in-law
stated that after the Veteran returned from Vietnam his life
had deteriorated.
On VA examination in January 2007, the Veteran described the
dead Viet Cong and the truck hit by a rocket as very
upsetting. The diagnosis was chronic combat-related
posttraumatic stress disorder.
In September 2008, the Joint Services Records Research Center
reported that a search of available records did not show an
attack at a bridge at Song Mao in December 1968 and that a
review of combat unit records did not document the rocket
attack on a convoy near Ninh Hoa in May 1970 or a firefight
at Ban Me Thout in June 1968.
In the supplemental statement of the case in October 2008,
the RO notified the Veteran that the U.S. Army and Joint
Services Records Research Center was unable to verify the
alleged in-service stressors.
Principles of Service Connection
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110.
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service, or if
preexisting such service, was aggravated by service. This may
be accomplished by affirmatively showing inception or
aggravation during service. 38 C.F.R. § 3.303(a).
Service connection is may also be warranted for a disease
initially diagnosed after discharge from service when all of
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Service connection for posttraumatic stress disorder requires
medical evidence diagnosing the condition in accordance with
§ 4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred.
38 C.F.R. § 3.304(f).
If the evidence establishes that a veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to
the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of a veteran's service, a veteran's lay testimony alone may
establish the occurrence of the claimed in-service stressor.
38 C.F.R. § 3.304(f).
Analysis
On the basis of the service treatment records, posttraumatic
stress disorder was not affirmatively shown during service
and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R.
§ 3.303(a) is not established.
To the extent that the Veteran declares that he has
posttraumatic stress disorder, posttraumatic stress disorder
is not a condition under case law where lay observation has
been found to be competent to establish a diagnosis and the
determination as to the presence of the disorder therefore is
medical in nature, that is, not capable of lay observation.
Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the
question of whether the veteran has a chronic condition since
service, the evidence must be medical unless it relates to a
condition as to which, under case law, lay observation is
competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay
testimony is competent to establish the presence of
observable symptomatology, where the determination is not
medical in nature and is capable of lay observation).
Also by regulation the diagnosis of posttraumatic stress
disorder requires medical evidence diagnosing the condition
in accordance 38 C.F.R. § 4.125, that is, a diagnosis that
conforms to the Diagnostic and Statistical Manual of Mental
Disorders (DSM- IV). 38 C.F.R. § 3.304(f).
Where as here the question involves a medical diagnosis, not
capable of lay observation, competent medical evidence is
required to substantiate the claim. Competent medical
evidence means evidence provided by a person who is qualified
through education, training, or experience to offer a medical
diagnosis or medical opinion. 38 C.F.R. § 3.159. As a lay
person, the Veteran is not qualified, that is, he is not
competent, through education, training, or experience to
offer a medical diagnosis of posttraumatic stress disorder.
For this reason, the Board rejects the statements of the
Veteran that he has posttraumatic stress disorder.
Also, under certain circumstances, lay evidence may establish
a diagnosis of a simple medical condition. Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that
lay evidence can be competent and sufficient to establish a
diagnosis of a condition when a layperson is competent to
identify the medical condition (noting, in a footnote, that
sometimes the layperson will be competent to identify the
condition where the condition is simple, for example a broken
leg, and sometimes not, for example, a form of cancer)).
As previously explained, by regulation the diagnosis of
posttraumatic stress disorder requires medical evidence
diagnosing the condition in accordance 38 C.F.R. § 4.125,
that is, a diagnosis that conforms to the Diagnostic and
Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R.
§ 3.304(f). For this reason, posttraumatic stress disorder
is not a simple medical condition that a lay person is
competent to identify, and the Board rejects the statements
of the Veteran that he has posttraumatic stress disorder
because it is not a simple medical condition. Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Although the Veteran is not competent to declare that he has
posttraumatic stress disorder, he is competent to describe
the symptoms of posttraumatic stress disorder. See Layno v.
Brown, 6 Vet. App. 465, 470 (1994) (Lay testimony is
competent with regard to symptoms of an injury or illness,
but not that the veteran had a particular injury or
illness.).
And based on the Veteran's statements and symptoms,
posttraumatic stress disorder was diagnosed by a competent VA
health-care professional who conducted both VA examinations
in November 2003 and in January 2007.
Although the record does contain competent medical evidence
of a diagnosis of posttraumatic stress disorder, this does
not end the inquiry because in order to establish service
connection under 38 C.F.R. § 3.304(f), there must be credible
supporting evidence of the occurrence of an in-service
stressor to support the diagnosis.
On the question of the occurrence of an in-service stressor
to support the diagnosis of posttraumatic stress disorder,
the evidence necessary to establish the occurrence of an in-
service stressor varies depending on whether or not the
Veteran engaged in combat with the enemy. Gaines v. West, 11
Vet. App. 353, 358 (1998).
If it is determined that a veteran engaged in combat with the
enemy, and the claimed stressor is related to combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of a veteran's
service, a veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 U.S.C.A. §
1154(b); 38 C.F.R. § 3.304(f).
The phrase "engaged in combat with the enemy" means that a
veteran must have personally participated in a fight or
encounter with a military foe or hostile unit or
instrumentality. The fact that a veteran served in a "combat
zone" does not necessarily mean that he engaged in combat
against the enemy. Whether or not a veteran "engaged in
combat with the enemy" depends on the facts of each case. An
assertion of combat service is evaluated along with other
evidence. A mere assertion of combat service, alone, is
insufficient to establish this fact. VAOPGCPREC 12-99;
Zarycki v. Brown, 6 Vet. App. 91 (1993) (mere presence in a
combat zone is not sufficient to establish combat service).
The service personnel records do not contain a military
citation or other official documentation that the Veteran
participated in a fight or encounter with the enemy.
The records do show that the Veteran participated in
campaigns in 1969 and in 1970, but the record also shows that
the Veteran was a truck driver and assigned to a
transportation company, which supported combat operations,
and by themselves, participation in campaigns and assignment
to unit supporting combat operations, that is, presence in a
combat zone, are insufficient to establish that the Veteran
personally participated in a fight or encounter with the
enemy.
As for the letter of appreciation in June 1969 for the
Veteran's outstanding performance as a driver and for
maintaining his vehicle, this also is insufficient to
establish that the Veteran personally participated in a fight
or encounter with the enemy as there is no reference to
combat.
As for the Letter of Commendation from the Commanding Officer
of the 36th Transportation Battalion (Truck) to the
Commanding Officers of the three Battalion's companies,
including the 442nd and 670th Transportation Companies,
commending the officers and men of the battalion for
outstanding performance during November 1969 for transporting
essential cargo in support of combat operations although
frequently harassed by enemy fire, which would be evidence of
an encounter with the enemy, first it is not clear that the
Veteran was in Vietnam in November 1969. The record does
show that from June 1969 to September 1969 the Veteran was
hospitalized in California following a vehicle accident while
on leave from Vietnam. He was then released to duty. The
record also shows that the last report from Letterman Army
Hospital, where the Veteran was released to duty, was dated
November 24, 1969. The service personnel records show that
he was in Vietnam in January 1970.
Whether or not the Veteran was in Vietnam in November 1969,
the commendation letter to the officers and men of the three
transportation companies of the 36th Transportation Battalion
does not specifically identify the unit that was harassed by
enemy, and even if the all three companies were harassed at
some time during November 1969, the letter is insufficient to
establish that the Veteran was present on one of the convoys
that was harassed by enemy fire. See Pentecost v. Principi,
15 Vet. App. 124 (2002) (Unit records documenting a veteran's
presence with a specific unit at the time of mortar attacks
occurred may be sufficient to corroborate that he experienced
such attacks personally.).
Moreover, the Veteran has not identified in his statements or
on VA examinations, diagnosing posttraumatic stress disorder,
any event in November 1969 as an in-service stressor. For
these reasons, there is no credible supporting evidence that
any incident in November 1969 constitutes an in-service
stressor.
As for the in-stressors identified by the Veteran, three
suggest personal encounters with the enemy, namely, a
firefight at Ban Me Thout in June 1968, an attack at a bridge
at Song Mao in December 1968, and a rocket attack on a convoy
near Ninh Hoa in May or June 1970.
In September 2008, the Joint Services Records Research Center
reported that a review of combat unit records did not
document the firefight at Ban Me Thout or the rocket attack
on a convoy near Ninh Hoa and the available records did not
show an attack at a bridge at Song Mao.
As the Joint Services Records Research Center is unable to
document the alleged in-service stressors, suggesting a
personal encounter with the enemy, and as the other evidence
of record, including the service personnel records and the
letter of appreciation and the letter of unit commendation,
are insufficient to establish that the Veteran participated
in an encounter with the enemy, the preponderance of the
evidence is against the Veteran's allegations of a combat
stressor, which is a material issue of fact.
For these reasons, the Board finds that the Veteran did not
engage in combat with the enemy.
As the Veteran did not engage in combat, the Veteran's
statements alone about a noncombat stressor, the sight of
bodies of dead Viet Cong, are insufficient to establish the
occurrence of the alleged noncombat stressor. Dizoglio v.
Brown, 9 Vet. App. 163 (1996). For a noncombat stressor, the
record must contain credible supporting evidence that a
stressor occurred. Anecdotal experiences, witnessing the
bodies of Viet Cong, simply cannot be verified independently.
See generally, Cohen v. Brown, 10 Vet. App. 128, 134 (1997)
(quoting the PTSD guide of the Joint Services Records
Research Center (formerly, ESG), who are tasked with
researching in-service stressors, that anecdotal incidents,
although they may be true, are not researchable. In order to
be researched, incidents must be reported and documented.).
And while the Veteran described the bodies of dead Viet Cong
as an in-service stressor on VA psychiatric examinations in
November 2003 and in January 2007, which were conducted by
the same examiner, and as posttraumatic stress disorder was
diagnosed, the evidence of the alleged noncombat stressor was
the Veteran's own statement, and Veteran's statement of the
noncombat stressor alone is insufficient proof of the
stressor. Dizoglio.
And the medical opinion, diagnosing posttraumatic stress
disorder, considering the Veteran's statement about a
noncombat stressor, is not credible supporting evidence of
the actual occurrence of an in-service stressor as the
credible supporting evidence can not consist solely of after-
the-fact medical nexus evidence. Moreau v. Brown, 9 Vet.
App. 389, 395-396 (1996).
To the extent that the Veteran's sister and brother-in-law
relate the Veteran's postservice mental health problems to
service, where there is a question of medical causation, that
is, evidence of an association or link between a current
disability and an injury or event in service, where a lay
assertion on medical causation is not competent evidence,
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent
medical evidence is required to substantiate the claim.
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical diagnosis, statement, or
opinion. 38 C.F.R. § 3.159. As lay persons, the Veteran's
sister and brother-in-law are not qualified, that is, not
competent, through education, training, and expertise to
offer an opinion on medical causation. The Board therefore
rejects the lay statements as competent evidence to support
the claim.
As the Board may consider only competent independent medical
evidence to support its findings on the questions of a
medical diagnosis, not capable of lay observation, and of
medical causation, where a lay assertion on medical causation
is not competent evidence, and without credible supporting
evidence of either any combat or noncombat in-service
stressor to support the diagnosis of posttraumatic stress
disorder, the preponderance of the evidence is against the
claim, and the benefit-of-the-doubt standard of proof does
not apply. 38 U.S.C.A. § 5107(b).
ORDER
Service connection for posttraumatic stress disorder is
denied.
______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs